Loading...
CM-2019-0039 - 2/1/2019COMPROMISE. RELEASE AND SETTLEMENT AGREEMENT THIS COMPROMISE, RELEASE, AND SETTLEMENT AGREEMENT ("Settlement Agreement") is made and entered into between CENTRAL ROAD AND UTILITY, LTD. ("CRU"), and CITY OF ROUND ROCK, TEXAS (the "City"). The City and CRU are referred to collectively as the "Parties." This Agreement will be effective on the date of last signature below. RECITALS «'FIEREAS, the Parties entered into a contract ("Contract") for the 411 Main Street Project on or about April 14, 2016; and WHEREAS, the Parties desire to avoid the uncertainty, inconvenience and expense of litigation and enter into this Settlement Agreement in order to provide for certain payments and other consideration in full settlement and discharge of all claims which were, are, could be, or could have been alleged by the Parties against one another, or in any petition or complaint fled or which could have been filed, and all claims which could be or could have been alleged by the Parties as to each other upon the terms and conditions set forth herein; WHEREAS, each of the Parties has agreed to release all claims asserted against the other Parties in both enumerated causes of action for the consideration set forth in this Settlement Agreement; and NOW THEREFORE, in consideration of the promises, covenants, releases, and other agreements contained herein, including the recitals set forth above, the Parties agree as follows: SETTLEMENT AGREEMENT AND RELEASE. 1.0 Definitions For purposes of this Settlement Agreement, the following definitions shall apply. I I "CENTRAL ROAD AND UTILITY, LTD." and or "CRU" shall mean CENTRAL ROAD AND UTILITY, LTD., its owners, officers, agents, legal representatives, successors, assignees, attorneys, any persons or entities claiming by, through, under or for them, and any entity with whom they are in Privity or have any interest. I.? "City" and/or "CITY OF ROUND ROCK" shall mean the CITY OF ROUND ROCK, TEXAS (a governmental entity organized and existing under the laws of the State of Texas), as well as its successors in interest, its past and present employees, Couneilpersons, Mayors, Mayors Pro -tem. assignees, agents, servants_ insurers, investigators, claim managers, attorneys, instrumentalities, agencies, departments and al other representatives including its risk pool, Texas Municipal League Inter -Governmental Risk Pool, and its officials, agents, representatives, employees and predecessors and successors in interest 1.3 "CLAIM(S)" shall mean any and all claims that have been or could have been asserted in a Lawsuit by any Party to this Settlement Agreement against any of the Parties Released. 1.4 "1NCIDENT(S)" shall mean any and all claims which could have been asserted or filed regarding or related to timely completion of responsibilities under the Contract described therein and t0661 THC Settlement Aetcemeat - Central Road Utility described in the Recitals above. 1.5 "PARTIES RELEASED" shall mean and include CRU and the City, as defined herein. 2.0 Releases and Discharge. Subject to (and effective only upon) die occurrence of rite conditions set forth in Article 3 of this Agreement, and for the consideration described therein, the Parties shall and hereby do release one another as follows: 2.1 CRU hereby ACQUITS, RELEASES, and FOREVER DISCHARGES the City of and from any and all claims, appeals, remedies, demands, debts, hens, causes of action, or liabilities, at law or in equity, either in contract or in tort, under common law, statute, or the U.S. or Texas Constitutions, as well as any other character or kind of action now held or owned by CRU in whole or in part, which CRU may now have or may hereafter claim to hold or possess on account of, growing out of, related to, or concerning, whether directly or indirectly, proximately, or remotely, arising from or related to in any manner any and all of the following i. Any and all claims brought or which may have been brought against the City related to or arising from the Incidents. ii. Any and all claims against the City for damages, attorneys' fees, or expenses incurred by CRU arising out of the Incidents, including claims for actual damages; compensatory damages; court costs; costs of suit; or interest of any kind. iii Any and all claims, allegations, causes of action, rights, remedies, and damages, known or unknown, with respect to any damage sustained by CRU allegedly caused by the City that allegedly arose in whole or in part, out of the Incidents. 2.2 The City hereby ACQUITS, RELEASES, and FOREVER DISCHARGES CRU of and from any and all claims, appeals, remedies, demands, debts, liens, causes of action, or liabilities, at law or in equity, either in contract or in tort, under common law, statute, or the U.S. or Texas Constitutions, as well as any other character or kind of action noir held or owned by the City, which they may now have or may hereafter claim to hold or possess on account of, growing out of, related to, or concerning, whether directly or indirectly, proximately, or remotely, arising from or related to in any manner any and all of the following: i Any and all claims brought or which may have been brought against CRU, related to or arising from the Incidents. ii. Any and all claims against CRU for damages, attorneys' fees, or expenses incurred by die City arising out of the Incidents, including claims for actual damages, compensatory damages, court costs, costs of suit; or interest of any kind iii. Any and all claims, allegations, causes of action, rights, remedies, and damages, known or unknown, with respect to any damage sustained by the City allegedly caused by CRU that allegedly arose in whole or in part. out of the Incidents. 2.3 It is understood and agreed that this is a FULL, FINAL and COMPLETE RELEASE and includes all claims of any kind or character with respect to any damages alleged or sustained by the Parties arising from the Incidents. It is the intention of the Panics to this Agreement that this Settlement Agreement shall be as general as possible, and that it shall cover every conceivable contingency which might arise in the future, or which may have arisen in the past, whether known or unknown at this time with respect to any damage alleged or sustained by any Party. The Parties understand that if the facts in respect of which this Settlement Agreement is made hereinafter prove to be different from the facts now known or believed by the Parties to be true, they expressly accept and assume the risk of the facts proven to be so different, and agree that all the terms of this Settlement Agreement shall in all respects be effective and shall not be subject to termination or rescission by any such difference in facts, whether under the doctrine of mutual mistake or any other reason, theory, or doctrine. 2.4 It is understood, acknowledged, and agreed by the Parties that the Settlement Amount and the other consideration provided for in this Agreement represents a FULL, FINAL and COMPLETE RELEASE and SATISFACTION of all Claims. 2.5 The releases set forth above are not intended to apply to any actions or events arising after the execution of this Agreement. 3.0 Conditions Precedent; Closing. 3.1 This Settlement Agreement, including without limitation the mutual releases set forth and described in Article 2, is subject to and contingent upon the satisfaction of the folio« ing conditions no later than February 1, 2019: (a) The City shall have paid to CRU, the sum of TWENTY-THREE THOUSAND EIGHT HUNDRED AND 23/100 DOLLARS ($23,800.25) (the "Settlement Amount"). Settlement drafts shall be made payable to Cokinos I Young Client Trust Account. 3.2 The deadlines set forth in this Article 3 may be extended by the mutual agreement of the Parties, through their respective counsel. sh4.0 Attornev's Fees 4.l Except as provided above, each Party agrecs to bear his, her, or its own attorneys' fees and costs arising from the actions of his, her, or its own counsel in connection with the Claims, this Settlement Agreement, and all matters and things arising therefrom or related thereto. 5.0 Warranties 5.1 The Parties are legally competent to execute this Settlement Agreement and are represented by counsel. 5.2 Before executing this Settlement Agreement, the Parties became fully informed of the terms, contents, conditions, and effect of this Settlement Agreement. 5.3 The Parties have not assigned, pledged, or in any other means sold, conveyed, or transferred in any manner whatsoever any right, title, or interest in any Claims. 5.4 Each Party owns the Claims and all Claims of anyone claiming by, through, under or on his/her/its behalf, including without limitation any such claims, counterclaims, and cross-claims filed or which could have been filed in the Lawsuit. 5.5 Each Party has relied solely upon his/her,+its own judgment and advice of hisfher/its own counsel in executing this Settlement Agreement and executes it willingly and without coercion or duress. 5.6 Each Party understands that this Settlement Agreement is a full, complete, and final release and waiver of all Claims filed or which could have been filed by such Party against any other Party arising from the Incidents. 5.7 Each Party warrants that the consideration furnished to him, her or it in conjunction with this Settlement Agreement is made in full reliance upon the warranties set forth in Paragraphs 5.1 - 5.6, as applicable. Should any of the warranties and/or representations be breached or prove to be untrue, then, to the extent allowed by law, the Party making such representation shall indemnify fully and hold harmless the aggrieved Party or Parties for all expenses, court costs, and attorneys' fees incurred by them with respect to any breaches of the representations or warranties and for enforcing this indemnity itself. 6.0 Entire Agreement: Successors -In -Interest: Amendments and A'%'aivers 6.1 This Agreement inures to the benefit of any person, fimi or corporation, including but not limited to the successors and assignees of the Parties Released, which could or might have been held legally liable in connection with any Claims. 6.2 This Agreement contains the entire understanding of the Parties and may not be modified, amended, superseded, or cancelled orally or in any manner other than by a written instrument signed by the Parties 6.3 The headings of the sections and paragraphs of this Settlement Agreement are included for convenience only and shall not be deemed to constitute part of this Settlement Agreement or to affect its construction 6.4 This Settlement Agreement may be executed in multiple counterparts, each of which for all purposes shall be deemed to be an original and all of which constitute one and the same Settlement Agreement. In making proof of this Settlement Agreement, no Party shall be required to produce or account for each original counterpart of this Settlement Agreement. 6.5 This Agreement may only be amended by a written instrument signed by all of the Parties. 7.0 Governint, Low. This Settlement Agreement shall be construed and interpreted in accordance �%ith the laws of the State of Texas without giving effect to the conflict of laws provisions thereof. Venue of any action arising from this Settlement Agreement shall be Williamson County, Texas. 8.0 Future Coutract Awards 8.1 The Parties agree that CRU is not disqualified from bidding for or being awarded future projects with the City. While the City is required to and will consider CRU's past performance of work when evaluating bids or proposals received from CRU for future City projects, the City will not consider the Claims, the Incidents or this settlement in conducting such craluations WHEREFORE, the Parties have caused this Settlement Agreement to be duly executed on the date specified below, in duplicate originals, and have set forth their signatures hereon. CENTRAL ROAD AND UTILITY, LTD. Bv: L ✓ f 7 � Name:..-,-----.-- elfikulhle Title. �Tb-s THE CITY OF ROUND ROCK, TEXAS EY i-� Narne. Title: 5 Date. - ??P j Date: J-1-11 City of Round Rock REXAS OUND snCx Agenda Item Summary Agenda Number: Title: Consider executing a Compromise, Release, and Settlement Agreement with Central Road and Utility, Ltd. regarding the 411 Main Street Project. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 2/1/2019 Dept Director: Gary Hudder Cost: $23,800.25 Indexes: RR Transportation and Economic Development Corporation (Type B) Attachments: 2018-01-18 SAR - Signed by R.Martinez Department: Transportation Department Text of Legislative File CM -2019-0039 The completed project formerly known as 411 Main experienced several challenges during construction. Although some were unavoidable by the contractor, the city felt that the contractor was wholly responsible for issues that delayed progress and impacted the public good. As the project closed out and final expenses were submitted for consideration by city personnel, it was determined the project was subject to liquidated damages per the terms of the contract. Since that time, negotiations have been ongoing between the city and the contractor related to the proposed damage claim. Through those negotiations, the City and the contractor have reached a settlement of the claim and recommend a final payment of $23,800.25 to close the contract. This also settles all legal activity and counter -claims related to the damage claim and will not impact any standard terms of the contract related to warranty liabilities. Cost: $23,800.25 Source of Funds: Round Rock Transportation and Economic Development Corporation (RRTEDC) City of Round Rock Page 1 Printed on 117012019